Attorney-Client Relationship

Why You Should NOT File For Bankruptcy “Pro Se”

Yes, it is in fact your Constitutional right to represent yourself in court proceedings. No question. It’s an important right, and I have no intention of arguing against it as a right. What I am going to argue in this post: as a matter of practice, you should never represent yourself in bankruptcy as a debtor. Get a lawyer.

The facts:

• Bankruptcy is widely recognized by lawyers who do not practice in that area regularly as such a specialized area that they do not “dabble” in it, as many general practitioners do in other areas. Example: a lot of “GP” lawyers will offer a variety of services - drafting wills, representation in DUI and other criminal matters, personal injury litigation, and real estate, to cite but one example I know of - and will entertain “becoming competent” through self-study in a new area (as the rules of professional conduct explicitly provide), but will steadfastly refuse to file bankruptcy petitions. The reason: it’s recognized by many to be so complex that the GP is asking for trouble - i.e., a malpractice claim - if s/he “dabbles” and messes up.

• Bankruptcy became even more complex in 2005 with the passage of the Abuse and Consumer Protection Act. Not only did the rules change, they became in some instances completely contradictory to each other. If lawyers, who practice in this field on a daily or exclusive basis, are struggling with the interpretation and implementation of these rules, how is a lay person going to navigate that minefield?

• Mistakes became even more costly with the passage of the Act, too. What’s the worst that can happen? Well, how about dismissal of your case? Having to incur another filing fee, another counseling certificate fee, another means test (because your old numbers are now out of date), going through another creditors’ meeting? How about a nondischargeable debt, that could have been discharged if it were properly scheduled and avoided, or a piece of property that gets sold by the Trustee that would have been exempt had the exemptions been properly planned? How about, in the worst scenarios, criminal prosecution?

• Petition preparers can’t help you with legal advice. If they do give you legal advice, they’re breaking the law. Nor can bankruptcy court clerks give you legal advice. Nobody can do that except a lawyer.

Here’s a transcript from Marketplace Money on NPR which recently took a look at the cost of filing bankruptcy “pro se.” Joseph Hurley is a bankruptcy court clerk who was interviewed for this story:

JOSEPH HURLEY: “People were showing up at our
counter without attorneys, who were very unfamiliar, those pro se
filers, with the bankruptcy requirements. As a result, the judges felt
that there were so many things that could overwhelm the debtor that
they were not in an equal playing field.”

So Hurley’s court hired a full-time clerk, Mary Fox. Her job is to deal
with people who file for themselves. She can tell clients what they
need to do to file correctly, but she’s not allowed to give legal
advice. A lot of times, she just helps people figure out what free or
low-cost legal services they qualify for.

Or convince them to hire an attorney, even if they have to borrow more money to pay for it.

There you have it. Yes, it costs money to hire a bankruptcy lawyer, but most will be willing to work with you to get the money together. Many, as I do, offer sliding scale fees based on complexity of the case, and many, as I do, also take a certain number of pro bono and reduced-cost cases a year.

More about the costs of bankruptcy in tomorrow’s post!

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